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Wednesday 29th July 2015
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Does your performance
management need performance
management?
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In today's Workplace Bulletin:
- How unreasonable performance management can become a bullying matter
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Dear Reader,
Today's headline isn't a typo.
Performance management is usually seen as a fact of the employer-employee relationship. Broadly defined, it's the process of evaluating and managing the performance of an employee to ensure that it is consistent with the company's objectives, and with the specific goals and standards of that employee. |
Although there's a wide range of tools and systems you can use to do that depending on the industry, and the employee's position, it should be straightforward.
What's surprising is that it so often goes awry. How does an employer's entitlement to take reasonable management action and keep an eye on employee performance spin out into unfair dismissal applications, adverse action claims, and even allegations of bullying?
At the sharp end of performance management-related bullying claims, the issues are obvious. These are the rare and unfortunate cases where a manager or boss is really just using performance management as a façade – a defence to rely on later on for giving an employee a hard time.
But how do functional and well-run businesses go wrong? AsEmployment Law Practical HandbookEditor-in-Chief Charles Power explains for you today, there's a risk that reasonable performance management will become unreasonable once you depart from the rules you've set for yourself.
The same could go if your performance management process overall is inconsistently applied – what seems like a reasonable process viewed by itself may not be if every other employee is treated differently!
As Charles explains in his comprehensive eBook,Managing Underperformance, "your capacity to defend a Fair Work Act bullying claim will depend on the extent to which you can show the performance management constituted reasonable management action".
But if performance management in your workplace is in dire need of a little performance management of itself, that could be difficult.
Read on as Charles analyses three interesting cases in this area.
Until next time,
Joseph Nunweek
Editor,Workplace Bulletin
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If you're already a subscriber to theEmployment Law Practical Handbook, we have an incredible, last chance offer for you…
But it's only on the table until August 10
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How unreasonable performance
management can become a
bullying matter
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Dear Reader,
Unreasonable performance management of a worker may amount to bullying if it is:
- repeated, and;
- creates a risk to health and safety.
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If your employee is subject to unreasonable performance management they may apply for an order from the Fair Work Commission (FWC) under the Fair Work Act's anti-bullying powers, requiring this to stop.
Whether performance management is bullying depends on whether a reasonable person, having regard to the circumstances applying at the time, would consider performance management to be unreasonable.
Remember: reasonable performance management carried out in a reasonable manner isnot bullying. Performance management may not be reasonable if not justified.
The FWC will not second-guess the employer's judgement as to whether poor work performance justified formal performance management.
It is enough for there to be "evident and intelligible justification (for taking management action) which a reasonable person would not consider unreasonable in all the circumstances."
But to be reasonable, the management action must be lawful. And it must not be 'irrational, absurd or ridiculous'.
By way of example, performance management that involves threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, abuse, belittling, bad faith, harassment, isolation, freezing-out, ostracism, innuendo, rumour-mongering and disrespect will be unreasonable.
Using performance management techniques to as a means to achieve and justify a predetermined outcome of termination of employment will also be unreasonable.
Whatever the reasons, you should be aware of the impact of performance management on the worker, particularly if their emotional state or poor psychological health magnifies the impact.
However, bear in mind that the unreasonableness of the action is not judged by the worker's perception of it – and that performance management that is not perfect or ideal, or involve an unreasonable step, may still be reasonable.
If you don't follow your own procedures and policies regarding performance management, this too may point to unreasonableness.
Examples of performance management bullying claims
In AB [2015] a case worker consultant with the Salvation Army claimed her performance management was bullying. The worker had been employed for 9 years to assist job seekers find employment.
The profile of the employee's clients had changed over time, with an increasing proportion of more challenging cases. This was part of her role and she received additional training. However, the employee objected to the number of high-need cases on safety grounds, and claimed her subsequent performance management was unreasonable.
The FWC noted a historical failure of the employer to assess individual work performance. This meant the introduction of individual performance management after several years was a significant change for the worker.
Additionally, the work intensity had increased as the organisation was required to deliver more efficient service. This led to a significant turnover of staff and adjustment difficulties for the worker.
However the FWC ruled the manner in which these changes were introduced and administered was not unreasonable. The employee's safety concerns were not substantiated and the resulting performance management was not unreasonable.
In Amie Mac v BOQ [2015] a 43 year old corporate solicitor alleged her performance management process was unreasonable and therefore bullying.
The employee was placed on a performance improvement plan (PIP) that identified targets for improvement, required achievement of those targets within identified time frames, and provided support and feedback to the employee to assist her to achieve such targets.
The FWC ruled the use of the PIP process to remedy poor performance was justified and not unreasonable.
The employer's failure at various stages during the PIP process to provide examples of alleged underperformance did not make it unreasonable – a level of informality is warranted where the process aims to improve performance, not punish.
However, the FWC criticised the lack of reference to any PIP process in BOQ's Performance Management Policy.
In Applicant v General Manager & Company[2014] an employee of a major national company alleged that a manager's aggressive tone and behaviour in a meeting had amounted to bullying.
The FWC ruled the fact an employee reacts badly to management action does not make the action unreasonable. In this case the general manager forcefully communicating in both words and body language was reasonable management action in all the circumstances. The FWC member stated:
"It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger. Just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable."
Is your performance management process reasonable?
Although none of these bullying claims were successful, all three highlighted the inherent risks of performance management processes which are inconsistently enforced, or not well-documented.
Some tools for you to achieve reasonable performance management in your business include:
- performance management policy;
- using performance improvement plan;
- line management training on offering constructive feedback and the appropriate use of performance management tools;
- position descriptions; and
- grievance procedures coupled with independent workplace investigations.
Regards,
Charles Power
Editor–in–Chief
Employment Law Practical Handbook
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